Thursday, October 18, 2012

Microsoft withdraws request for German preliminary injunction against Motorola RAZR

Today I attended an appeals hearing at the Munich Higher Regional Court relating to the Munich I Regional Court's April 4, 2012 denial of a preliminary injunction Microsoft had requested against the Motorola RAZR smartphone, alleging violation of EP1193956 on "merging various request methods into a single unified user interface". After about two hours of argument, Microsoft's lead counsel in this action, Dr. Markus Gampp of Freshfields Bruckhaus Deringer, withdrew the preliminary injunction request. As a result, Motorola Mobility, represented by Dr. Marcus Grosch of Quinn Emanuel, has fended off two German injunctions in a row. Two weeks ago, the Mannheim Regional Court sided with the Google subsidiary on another German Microsoft lawsuit (over a radio interface patent).

Microsoft previously won, in addition to a U.S. import ban, three German injunctions against Motorola Mobility's Android devices. As a result of those losses, Motorola Mobility isn't selling any Android devices in Germany anyway at this stage. From a short-term commercial vantage point, the requested injunction would merely have beaten a dead horse. For all worldwide Android infringement findings please check out my recently updated list. Today's ruling has no bearing on cases involving other Microsoft patents.

[Update] I just received the official information from Motorola Mobility that the company "is very committed to providing compelling devices to German consumers and [...] extremely excited about the upcoming launch of RAZR i on 20th October", which is the day after tomorrow. Motorola Mobility also says that another RAZR phone, the RAZR HD, "is already available exclusively in O2 stores". O2 is a major carrier. These statements by Motorola imply that the company believes to have worked around the patents that German courts have enjoined it from infringing. If Apple and/or Microsoft disagree, they will have to move for sanctions for contempt of court. [/Update]

At this stage, neither Apple nor Microsoft are able to enforce a preliminary injunction over a technical (as opposed to design) patent against Android devices in Germany or in the United States, but both have won U.S. import bans from the ITC and permanent (though appealable) injunctions in Germany. Apple is presumably still enforcing a preliminary injunction against Samsung in the Netherlands over a photo gallery patent that its Korean rival engineered around more than a year ago.

Microsoft's counsel had previously represented to the court that no main proceeding is pending over this matter. Considering that Microsoft has countless patents in the fields of technology relevant to Android, over four of which it has already prevailed, it will probably move on and focus on other patents.

There were two key issues that made the Munich-based appeals court skeptical of Microsoft's preliminary injunction request. Likelihood of success on the merits was in doubt, and the court was unconvinced of the sense of urgency that justifies a preliminary injunction in light of the fact that earlier Motorola devices, including one accused in other Microsoft lawsuits in Germany (over different patents), already implemented the same phone number selection mechanism as the RAZR. Microsoft argued that the RAZR was launched in Germany with a more aggressive marketing campaign than earlier allegedly-infringing devices, a factual representation to which Motorola raised an untimeliness objection.

By withdrawing its petition, Microsoft saved the appeals court the effort of issuing a detailed written ruling, and eliminated the need to adjudicate the merits of the case in a full-blown main proceeding.

The parties have plenty of cases pending against each other in different courts. On November 13, a FRAND obligations trial will commence in Seattle, and on November 15, the Munich Higher Regional Court will hold a hearing on the enforceability (while an appeal is pending) of one of the three permanent injunctions Microsoft won against Motorola in this country.

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About Me

Florian Mueller used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.